BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 706 (Correa)
As Introduced February 22, 2013
Hearing date: April 30, 2013
Penal Code VOTE ONLY
AA:mc
JAIL FELONY SENTENCES:
MANDATORY POST-CUSTODY STATUS
HISTORY
Source: California Police Chiefs Association
Prior Legislation: AB 109 (Committee on Budget) - Ch. 15, Stats.
2011
AB 117 (Committee on Budget) - Ch. 39, Stats. 2011
ABx1 17 (Blumenfield) - Ch. 12, Stats. 2011
AB 116 (Committee on Budget) - Ch. 136, Stats. 2011
Support: Crime Victims Action Alliance; California District
Attorneys Assocation
Opposition:California Probation, Parole and Correctional
Association; California Attorneys for Criminal Justice
KEY ISSUE
SHOULD ALL FELONS SENTENCED TO COUNTY JAIL UNDER REALIGNMENT BE
SUBJECT TO A 12-MONTH PERIOD OF POSTRELEASE STATUS WHICH WOULD
INCLUDE WARRANTLESS SEARCH AND SEIZURE, AS SPECIFIED?
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PURPOSE
The purpose of this bill is to create a 12-month period of
postrelease status for felons who have served their felony terms
in county jail which would include warrantless search and
seizure, as specified.
Current law generally provides that certain felonies - those
which by their statutory terms specifically so provide - are
punishable by a term of imprisonment in a county jail, as
specified. (Penal Code § 1170(h).)
Current law provides that, notwithstanding this general
provision, where a defendant meets any of the following
criteria, an executed sentence for a felony punishable pursuant
to this subdivision shall be served in state prison:
The defendant has a prior or current felony conviction
for a serious felony described in subdivision (c) of
Section 1192.7;
The defendant has a prior or current conviction for a
violent felony described in subdivision (c) of Section
667.5;
The defendant has a prior felony conviction in another
jurisdiction for an offense that has all of the elements of
a serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of
Section 667.5;
The defendant is required to register as a sex offender,
as specified; or
The defendant is convicted of a crime and as part of the
sentence an enhancement pursuant to Section 186.11 is
imposed. (Penal Code § 1170(h)(3).)
Current law provides that, for convicted felony offenders
subject to confinement in a county jail, courts are authorized
to impose the felony sentence to commit a defendant to county
jail as follows:
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For a full term in custody as determined in accordance
with the applicable sentencing law.
For a term as determined in accordance with the
applicable sentencing law, but suspend execution of a
concluding portion of the term selected in the court's
discretion, during which time the defendant shall be
supervised by the county probation officer in accordance
with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the
remaining unserved portion of the sentence imposed by the
court. The period of supervision shall be mandatory, and
may not be earlier terminated except by court order.
During the period when the defendant is under such
supervision, unless in actual custody related to the
sentence imposed by the court, the defendant shall be
entitled to only actual time credit against the term of
imprisonment imposed by the court. (Penal Code § 1170(h)
(5).)
This bill would provide that, an "individual released from
county jail after serving part or all of a sentence for a felony
pursuant to subdivision (h) of Section 1170 shall, for a period
of 12 months, be placed on Community Reintegration and
Transition Status (CRATS)."
This bill would provide that, notwithstanding "any other law, an
individual on CRATS shall not be returned to county jail or be
subject to any revocation process, unless he or she is arrested
or convicted of a new offense."
This bill would provide that an "individual on CRATS is subject
to search or seizure by a peace officer at any time of the day
or night, with or without a warrant, and with or without cause.
The individual on CRATS shall be notified of these conditions
upon release from jail."
This bill would provide that these provisions would "not
authorize a peace officer to conduct a search or seizure . . .
for the sole purpose of harassing an individual on CRATS."
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This bill includes uncodified legislative findings and
declarations describing the period immediately following the
release of inmates from incarceration as critical to their
successful reintegration into society and to positive
citizenship, and the interest of public safety to provide for
the effective supervision and surveillance of persons who have
served a felony sentence in jail, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
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. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
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COMMENTS
1. Stated Need for This Bill
The author states:
In 2011 Governor Jerry Brown signed Assembly Bill 109,
commonly referred to as prison realignment, shifting
the responsibility for monitoring, tracking, and
incarcerating lower-level offenders from state prisons
to county jails. Under AB 109, unless given a "split"
sentence, where time served is divided between jail
and mandatory supervision under the county probation
department, these lower level offenders are not
subject to any form of supervision or surveillance.
Furthermore, those receiving "straight" sentences are
often released early due to overcrowding in county
jails.
The period immediately following an offenders' release
is when recidivism is most likely. Offenders who are
not subject to any form of supervision are more likely
to commit a crime and less likely to successfully
reintegrate into their communities.
2. What This Bill Would Do
As explained in detail above, this bill essentially would create
a period of postrelease status for felons who have served their
felony terms in county jail, with the following key features:
12-month period following release;
no jail or revocation process except for a new offense;
and
subject to warrantless search and seizure (but not for
sole purpose of harassment).
3. Felony Sentencing Under Realignment; Split Sentencing; This
Bill
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The "2011 Realignment Legislation Addressing Public Safety"
("realignment") fundamentally altered how convicted felons are
handled under California law.<1> Under California law operative
until October 1, 2011, a felony was a crime punishable by death
or imprisonment in state prison.<2> Executed felony sentences
were served in the state prison. Effective October 1, 2011,
realignment redefined the term "felony" to include crimes
punishable by imprisonment in a county jail, as specified,
depending upon the criminal history of the offender.<3>
As explained in a January 2012, article describing felony
sentencing after realignment:
With respect to felony sentencing, it appears the
intent of the realignment legislation is merely to
change the place where sentences for certain crimes
are to be served. The legislation has not changed the
basic rules regarding probation eligibility. Courts
retain the discretion to place people on probation,
unless otherwise specifically prohibited, under the
law that existed prior to the realignment legislation.
There is no intent to change the basic rules
regarding the structure of a felony sentence contained
in sections 1170 and 1170.1. Furthermore, there is no
change in the length of term or sentencing triad for
any crime. Realignment comes into play when the court
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<1> AB 109 (Committee on Budget) (Ch. 15, Stats. 2011) is the
principal measure establishing the 2011 public safety
realignment. As noted at the beginning of this analysis,
several subsequent measures revised AB 109 and enacted
additional provisions relating to certain aspects of
realignment.
<2> Penal Code § 17. This classification does not affect the
ability of the court to suspend execution of a felony sentence
and impose conditions of probation where allowable, supervised
and performed locally. (See Penal Code § 1203.1.) A
misdemeanor is a crime punishable by imprisonment by 6 months or
not more than one year. (Penal Code §§ 19 and 19.2.)
<3> Penal Code § 17.
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determines the defendant should not be granted
probation, either at the initial sentencing or as a
result of a probation violation.<4>
The confinement changes under realignment - that is,
modifications to where felons serve their executed felony
sentences in custody, either in state prison or in local
facilities - apply to persons sentenced on or after October 1,
2011. These changes are not retroactive.<5>
Realignment provides that numerous felonies are punishable by a
term of imprisonment in county jail - not prison - unless the
crime of conviction or a defendant's criminal history makes the
defendant ineligible for serving their felony sentence in
jail.<6> This change, contained in subdivision (h) of Penal
Code section 1170, applies only to criminal statutes which have
been expressly amended to provide for a felony jail term where
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<4> Felony Sentencing After Realignment, J. Richard Couzens,
Judge of the Superior Court, County of Placer (Ret.); Tricia A.
Bigelow, Presiding Justice, Court of Appeal, 2nd Appellate
District, Div. 8, p. 3 (January 2012).
(http://www.courts.ca.gov/partners/documents/felony_sentencing.pd
f.)
<5> Paragraph (6) of subdivision (h) of Section 1170 of the
Penal Code states: "The sentencing changes made by the act that
added this subdivision shall be applied prospectively to any
person sentenced on or after October 1, 2011." With the
exception of the role of courts in adjudicating parole
violations, which starts on July 1, 2013, the major criminal law
provisions of realignment became operative on and after October
1, 2011.
<6> Just like the law prior to realignment about the length of
terms, if a term is not specified in the underlying offense the
crime shall be punishable by a term of imprisonment for 16
months, or two or three years and, for crimes where the
underlying criminal statute specifies the term, the felony shall
be punishable by imprisonment for the term described in the
underlying offense. (See Penal Code § 18 and Penal Code Section
1170(h).)
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otherwise allowable.<7>
As enumerated in an earlier portion of this analysis, certain
felons are categorically prohibited from serving an executed
felony sentence in county jail. For convicted felony offenders
subject to confinement in a county jail, courts are authorized
to impose the felony sentence to commit a defendant to county
jail as follows:
For a full term in custody as determined in accordance
with the applicable sentencing law.
For a term as determined in accordance with the
applicable sentencing law, but suspend execution of a
concluding portion of the term selected in the court's
discretion, during which time the defendant shall be
supervised by the county probation officer in accordance
with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the
remaining unserved portion of the sentence imposed by the
court. The period of supervision shall be mandatory, and
may not be earlier terminated except by court order.
During the period when the defendant is under such
supervision, unless in actual custody related to the
sentence imposed by the court, the defendant shall be
entitled to only actual time credit against the term of
imprisonment imposed by the court.<8>
As explained by Judge Couzens and Justice Bigelow:
Sentences imposed under section 1170, subdivision
(h)(5)(B), have been characterized as "split" or
"blended" sentences because they have both custody and
non-custody elements. The length and circumstances of
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<7> This feature of criminal justice realignment - that its
newly-created felony jail sanction can be applied only to those
criminal statutes expressly amended to include a cross-reference
authorizing that sanction - largely accounts for the length of
AB 109 (663 pages).
<8> Penal Code § 1170(h) (5).
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the suspended term are within the court's discretion;
presumably the court could suspend all or only a
portion of the sentence. There are many sentencing
strategies available to the court, depending on the
defendant's circumstances, hopefully enlightened by a
current risk/needs assessment done by the probation
department. The following represent just a few of the
options available to the court:
The court could impose a term from the
triad, suspend a concluding portion of the term
and set conditions of supervision. Such an
alternative may be appropriate when the time in
custody will be relatively short such that the
case plan developed at sentencing will be
reasonably current when the defendant converts to
mandatory supervision.
The court could impose a term from the
triad, suspend a concluding portion of the term,
but reserve jurisdiction to set the conditions of
supervision shortly before the defendant is
released from custody. Such an alternative may
be appropriate when the court realizes that
supervision is necessary, but because of a
lengthy custody period may want to have a new
risk/needs assessment at the time the defendant
is ready to be released. Such a strategy will
account for the changing nature of defendant's
risk and will make the case plan more relevant to
defendant's actual circumstances at the time he
is ready for release.
The court could choose to impose a
sentence under the provisions of section 1170,
subdivision (h)(5)(B), but reserve jurisdiction
to set the actual time and conditions of release
at a later time. Such a strategy might be
appropriate where the court wants to give the
defendant encouragement to complete various
custody programs and do well in custody, then set
relevant terms when the court determines release
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is appropriate.<9>
The California Police Chiefs Association, which is the sponsor,
submits that this bill is a "moderate and prudent measure that
will assure that the California realignment experiment works
more effectively." They submit in part:
Under Penal Code section 1170 anyone convicted of a
so-called triple non: non-serious, nonviolent,
non-sexual offense can either complete their entire
sentence in county jail or opt for a split sentence
where part of the sentence is spent in custody and the
balance is spent under probation supervision.
In theory, the straight time was to be the more
significant of the two options, but due to the
overcrowding situations in jails, persons convicted of
a triple-non have quickly realized they can choose
straight time, get released early without any
supervision. In some cases, persons choosing straight
time have even been released earlier than persons
serving a split sentence. Given these realities, it
is no surprise that about 85 percent of those
convicted of a PC 1170-eligible crime
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<9> Felony Sentencing After Realignment, supra fn.4, at p. 8.
have opted for the straight time compared with only
15% who choose a split sentence.
. . .
Those sentenced under PC 1172 are released after
opting for straight time are neither on probation or
parole and have effectively fallen off the grid.
The Chief Probation Officers of California ("CPOC") has compiled
data regarding sentencing decisions for felons sentenced under
Penal Code section 1170(h).<10> Their data indicates that
between October 2011 and September 2011, 7,006 felons sentenced
under section 1170(h) were given split sentences, and 22,021
were given jail time only. Thus, only about 25 percent of jail
felony offenders received split sentences during the first year
of realignment.
The data compiled by CPOC noted above includes the following
sample of split-sentence usage during the first year of
realignment:
Alameda County - 8% split sentence
Contra Costa - 86 % split sentence
Los Angeles County - 5% split sentence
Orange County - 26% split sentence
Riverside County - 67 % split sentence
Kern County - 13 % split sentence
San Diego County - 24% split sentence<11>
In its Winter 2012 Issue Brief, CPOC reported:
. . . The new local prison population under
Realignment has caused additional stress to local
jails, many of which were struggling with jail
overcrowding before
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<10>
http://www.cpoc.org/assets/Realignment/splitsentencedashboard.swf
.
<11> Id.
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realignment. Many Sheriffs are directing Realignment
funds to building additional jail beds or plan on
applying for jail expansion funds to address the
capacity issues. . . .
Split sentences are an important public safety tool
that is currently being underutilized in some areas of
California. Plea bargaining and sentencing practices
vary, but the research is clear that a period of
supervision following incarceration, rather than just
incarceration will lead to reduced recidivism.
Probation Departments have the tools and experience
with felony offenders to
effectively balance community safety with
rehabilitation. The Chief Probation Officers of
California believe, based on years of research and
experience that California citizens are better served
with increased use of split sentencing.<12>
Members may wish to discuss how this bill, which would impose a
12-month period of community status for jail felons, would
compare to the community supervision discussed above, and the
impact the use of split sentencing. Questions members may wish
to consider include:
Would this bill improve realignment?
Would this bill discourage the use of split sentencing
because it would allow for the sentencing of jail felons
both to maximum jail sentences terms and 12 months of
post-release warrantless searches and seizures?
Would this bill effectively end the use of split
sentences, as enacted by realignment?
What would the impact on jail overcrowding be if the use
of split sentences for jail felons declines or disappears?
Should all jail felons be subject to a 12-month period
of warrantless searches and seizures?
Would a one-size fits all approach for this population,
applied without the use of an individualized risk/needs
instrument, be an effective and evidence-based practice?
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<12> http://www.cpoc.org/assets/Realignment/issuebrief2.pdf.
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Would this bill provide a strategy more effective than
the use of split sentences under realignment?
Would this bill be an effective response to address
offenders are "choosing straight time" over split
sentences?
4. "Community Reintegration and Transition"; Warrantless Searches
and Seizures
This bill terms its program, "Community Reintegration and
Transition Status," although the bill does not specify the kind
of reintegration or transition services offenders under this
status would receive, and does not provide that any
reintegration or transition services be part of this "status."
The bill would provide, however, that these persons would be
subject to warrantless searches and seizures.
Members may wish to discuss how this bill would facilitate the
"community reintegration and transition" of jail felons, and how
warrantless searches and seizures would promote the successful
transition of these offenders.
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